The European Convention on Human Rights (Convention), which came into force in 1953, was motivated by the desire to prevent the worst abuses of the Second World War and protect citizens of European countries from the threat of Communism. Today, the body that rules on the Convention, the European Court of Human Rights (ECHR), has become an important source of law by determining when national laws, regulations or legal judgments contravene the Convention.
But the way in which the ECHR has defined the Convention ever more broadly – for example, to create protections for minority groups or to include health insurance premiums and welfare reform – has come in for considerable criticism. Are recent judgments enacting the spirit of the Convention by broadening the application of rights to ever more areas and groups? Or has this process of interpretation gone way beyond its original scope to become a means of undermining democracy and the sovereignty of nations? Many would argue that the legislative process is often too slow in protecting rights and point to the dangers of majoritarianism. Others believe bypassing elected institutions and lawmakers is fundamentally undemocratic.
Switzerland intends to hold a national vote on a “self-determination initiative” to decide whether its Federal Constitution should be the ultimate source of law for the Swiss Confederation. The objective of this controversial Federal popular initiative is to put the constitution above non-obligatory international laws and the influence of foreign judges and powers.
Meanwhile, the current Conservative government in the UK has committed to scrapping the Human Rights Act – which incorporated the Convention into UK law – in favour of a British Bill of Rights, which would ‘reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.’
What should be the balance between giving freedom to lawmakers and voters to enact anything they want and retaining some ‘fundamental’ rights that may not be breached? Is giving judges such a large say a useful means to protect our rights or does it simply bypass democracy? Indeed, is democracy overrated, as some have suggested? Would we be better to rely on the judgment of experts and supranational bodies that aren’t directly answerable to the electorate?
